Stearman v. Baltimore & Ohio Railroad

Mr. Justice Shepard delivered the opinion of the Court: 1. The first assignment of error is founded on a ruling made by the court in the course of the examination of plaintiff’s witness, Woodward, and is set forth in the bill of exceptions as follows: “ On redirect examination, the witness stated, that while he did not recollect the date of the accident, he remembered making an affidavit in relation to the .accident, but did not know how long ago it had been. He identified his signature to the affidavit, which was shown him, and thereupon counsel for plaintiff tendered said affidavit to the witness for the purpose of refreshing his recollection, to which no objection was interposed by the counsel for defendant. Witness stated that he could not read the .affidavit, and further stated that he did not know that said .affidavit was read over to him ; that he did not recollect of its having been read over, but he recollected signing at the bottom, and that he wrote his signature to it and swore to ■the truth of it. Thereupon counsel for plaintiff offered to .read said affidavit to the witness in the hearing of the jury, [52] and ask him whether that refreshed his recollection.” The affidavit was also copied into the record, and bears date March u, 1891, more than three years after the accident. No request was made to have the paper read to the witness elsewhere than in the presence of the jury, and the court refused the permission as asked. Had the witness been able to read the paper, which it seems he was able to sign his name to, it would have been proper to permit him to refresh his memory by its perusal, and no objection was made thereto. But it was not proper to permit the paper to be read to the witness in the hearing of the jury. He should have asked leave to have it read to him elsewhere. As a matter of fact, moreover, the affidavit is in substantial accord with the evidence given by the witness, which follows it very closely. There was no need to refresh his recollection as to the exact day upon which the accident occurred, even if this could have been effectually done by a paper drawn up and subscribed more than three years thereafter, because the witness had said it occurred in January, 1888, and the exact date was unimportant. 2. The next and last question is, did the court' err in directing a verdict for the defendant ? The limitations of the power of the trial courts, in this District, to take a case from the jury and direct a verdict, are carefully considered and explained in the opinion of this court delivered by Mr. Justice Morris, in Warthen v. Hammond, 5 App. D. C. 167, to which nothing need be added. Although in that case the trial court was held to have exceeded its power in directing a verdict to be returned, it was said: “ We regard it as a sound and salutary rule of practice, that a trial court may withdraw a case from the consideration of a jury, or, what amounts to the same thing, in our practice, may peremptorily direct a verdict for one or the other party to a suit in clear cases where the evidence, with all just inferences that might be drawn from it, would be insufficient to support a contrary verdict; and a trial court should not hesitate to exercise its right so to do.” [53] With this rule in mind, the evidence is to be carefully considered. It appears therefrom that the deceased had voluntarily placed herself in a situation of great danger. The fact that trains had not usually been run upon the eastern track into the city, in which direction she was walking, or had not been seen by the witness to run in that direction, makes but little if any difference. It does not appear that there was any law or regulation governing the running of trains upon that track, and the fact that the train which did the injury was running into the city thereon, would tend to show at least that there was no rule or invariable custom controlling its use. The place of the accident was outside the limits of the city, and the speed of trains at that place was discretionary with the defendant. There was no road crossing at or near the place, and it does not appear that people had been accustomed to use the tracks as a pathway to or from the city. Deceased was not shown ever to have used the track for a walk before, and there is nothing to show any reason for her doing so on that occasion. The evidence shows that there was a wagon road not more than two hundred .yards from the track, in which the witness, Woodward, was walking on his way to the city at the time that he saw deceased walking on the track. There is no evidence tending to show that the engineer saw deceased at all, much less in time to warn her, or to •stop the train before running upon her. If it be granted that the testimony of a witness who says that he did not hear the sound of either bell or whistle, is equivalent to proof that no such sound was made, the fact would tend rather to show that the deceased was not seen at all in time to give the warning, than that she was wilfully or recklessly run down after her presence had been discovered. Before negligence could be inferred from a failure to sound the warning, it should be made to appear that the engineer saw the deceased in time to do so. As we have seen, however, there was no evidence showing, or tending to show, that he did see her. There is therefore no foundation for inference. [54] Presumption cannot be founded on presumption; it must have for its base a fact or circumstance in actual proof. Nor can negligence be inferred from the mere fact of injury. Weaver v. B. & O. R. Co., 3 App. D. C. 436. It is earnestly contended that it was the engineer’s duty to keep a sharp lookout ahead, and that, had he done so, he must inevitably have seen deceased in time to give the usual warning, or to stop the engine; and hence, that he was guilty of negligence. Concede this, and yet something more is required to warrant a recovery in a case like this, where the plaintiff’s own evidence discloses the fact that the negligence of his intestate contributed directly to the accident. In holding that there was no case for submission to the jury, the trial court followed the rule laid down by this court in the case of R. & D. Railway Co. v. Didzoneit, 1 App. D. C. 482. The facts of that case were even more favorable to the plaintiff than are the facts of this. The engineer, before starting his engine to pass the station, saw the boy sitting upon the low platform, with his foot upon or near the rail, but did not know that he was asleep. The engine was moving at the rate of about three miles per hour, and the engineer, supposing the boy to be awake and in the possession of his senses, took it for granted that he would move his foot in time to avoid injury. But, on coming nearer, he discovered that the boy was apparently asleep, whereupon he tried to stop the engine, but was unable to do so in time to prevent the accident. The bell was not rung, nor was the whistle sounded. Judgment for the plaintiff was reversed, because the court ought to have instructed the jury to find for the defendant on account of plaintiff’s contributory negligence. The rule governing such cases was thus stated: “ It will be noticed that it is reckless injury and willful negligence that will not excuse a defendant when they occur after a case of contributory negligence in the plaintiff. Negligence superimposed upon negligence does not amount to wilfulness; nor is the failure, super-induced by negligence, to have knowledge of a dangerous [55] condition the equivalent of actual knowledge of such condition. And it is only when a defendant has actual knowledge of the plaintiff’s danger, and could, by the exercise of ordinary care and prudence have avoided the resulting injury, that the plaintiff is relieved from the liability of having his own negligence charged against him, and the defendant’s negligence is regarded as the proximate and exclusive cause of the injury. The fact that it may have been negligence in the defendant not to have known the plaintiff’s danger, and that the defendant might have ascertained the danger by the exercise of due care, cannot be permitted to have the effect of actual knowledge so as to charge the defendant with recklessness. To allow such an effect would result in the overthrow of the whole doctrine of contributory negligence. It would be impossible, upon such a theory, ever to hold any one to the consequences of his own misconduct. For if negligence to acquire knowledge were the equivalent of knowledge, in the contemplation of the law of torts, every act of negligence should be construed as an act of wilfulness.” See also State, use of Bacon, v. B. & P. Railway Co., 58 Md. 482, 490; Freeh v. P., W. & B. Railroad Co., 39 Md. 574; Railroad Co. v. Houston, 95 U. S. 697. Finding no error in the proceedings on the trial, the judgment must be affirmed, tvith costs to the appellee ; and it is so ordered.